Himachal Pradesh High Court
Unknown vs State Of Himachal Pradesh on 6 October, 2016
Author: Sanjay Karol
Bench: Sanjay Karol, Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
.
Criminal Appeal No. 24 of 2015 alongwith
Criminal Appeal No. 65 of 2015,
Criminal Appeal No. 66 of 2015,
Criminal Appeal No. 67 of 2015 and
Criminal Appeal No. 68 of 2015.
of
Judgment reserved on : 27.9.2016
Date of Decision : October 6 , 2016
1. Cr. Appeal No. 24 of 2015
rt
Wakar Chaudhary ...Appellant
Versus
State of Himachal Pradesh ...Respondent
2. Cr. Appeal No. 65 of 2015
Dalip ...Appellant
Versus
State of Himachal Pradesh ...Respondent
3. Cr. Appeal No. 66 of 2015
Bablu ...Appellant
Versus
State of Himachal Pradesh ...Respondent
4. Cr. Appeal No. 67 of 2015
Iqbal Khan ...Appellant
Versus
State of Himachal Pradesh ...Respondent
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2
5. Cr. Appeal No. 68 of 2015
Asha @ Sarfutti ...Appellant
.
Versus
State of Himachal Pradesh ...Respondent
Coram:
The Hon'ble Mr. Justice Sanjay Karol, Judge
of
The Hon'ble Mr. Justice, Ajay Mohan Goel, Judge.
Whether approved for reporting? Yes. 1
For the appellant
rt : Mr. Anoop Chitkara, Advocate,
appellant in Cr. A. No. 67 of 2015.
for the
Mr. Vinay Thakur, Advocate, as Legal Aid
Counsel for the appellant in Cr. A. No. 66 of
2015.
Mr. Vir Bahadur Verma, Advocate as Legal Aid
Counsel for the appellant in Cr. A. No. 65 of
2015.
Ms. Archana Dutt, Advocate, as Legal Aid
Counsel for the appellant in Cr. A. No. 68 of
2015.
Mr. O. P. Chauhan & Ms. Shikha Chauhan,
Advocates, for the appellant in Cr. A. No. 24 of
2015.
For the respondent : Mr. Vikram Thakur and Mr. Puneet Rajta,
Deputy Advocate Generals for the
respondent/State in all the appeals.
Sanjay Karol, J.
Appellants-convicts Wakar Chaudhary, Dalip, Bablu, Iqbal Khan and Asha @ Sarfutti (hereinafter referred to Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 21:22:07 :::HCHP 3as the accused), have filed the instant Criminal Appeals, assailing the judgment dated 20.11.2014/26.11.2014, .
passed by the learned Addl. Sessions Judge-I, Solan, Distt.
Solan, H.P., in Sessions Trial No. 24-S/7 of 2012, titled as State of Himachal Pradesh vs. Wakar Chaudhary & others, whereby they all stand convicted for having committed of offences punishable under the provisions of Sections 302 and 396, both read with Section 120B of the Indian Penal Code. In rt addition, accused Wakar Chaudhary also stands convicted for having committed an offence punishable under the provisions of Section 25-54-59 of the Arms Act, 1959. They all stand sentenced as under:
Name of Sections Sentence
accused
Wakar 302/120B Rigorous Imprisonment for life and
Chaudhary IPC to pay a fine of `5000/-, and in
default of payment thereof to
further undergo simple
imprisonment for a period of three
months.
396/120B Rigorous imprisonment for 10 years
IPC and pay fine of `3000/- and in
default of payment thereof to
further undergo simple
imprisonment for a period of two
months.
25-54-59 Rigorous imprisonment for 3 years
Arms Act and pay fine of `3000/- and in
default of payment thereof to
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4
further undergo simple
imprisonment for a period of two
months.
.
Dalip, 302/120B Rigorous Imprisonment for life and
Bablu, IPC to pay a fine of `5000/- each and in
Iqbal Khan default of payment thereof to
and further undergo simple
Asha @ imprisonment for a period of three
Sarfutti. months each.
of
396/120B Rigorous imprisonment for 10 years
IPC each and pay fine of `3000/- each
and in default of payment thereof
to further undergo simple
imprisonment for a period of two
rt months each.
2. In short, it is the case of prosecution that Priya Mahant (PW-4) and Rajesh (PW-5) noticed bodies of deceased Rattni @ Nani and Desh Raj lying inside the Kinner House, situate at Rajgarh Road, Solan, H.P. Such fact was immediately brought to the notice of the police at Police Station Sadar, Solan. Police Official Inspt. Raj Kumar (PW-26) visited the spot and inspected the room where the bodies were lying. Hands and mouth of both the deceased were tied and their throats slit with a knife lying on the spot.
Inquest reports (Ext.PW-26/B to Ext. PW-26/E) came to be prepared and dead bodies sent for post mortem, so ::: Downloaded on - 15/04/2017 21:22:07 :::HCHP 5 conducted by Dr. Anuj Kumar Gupta (PW-23) and reports (Ext.PW-23/C & Ext. PW-23/D) taken on record. After .
conducting preliminary investigation, the premises were sealed by the police. Police took into possession various incriminating articles from the spot and sent them for analysis to the Forensic Science Laboratory for opinion of of experts. During the course of investigation, police interrogated several persons, including Priya Mahant (PW-4) rt and Manish (not examined), who were associated with the affairs and activities of the Kinner Centre run and managed by deceased Rattni. Initially police suspected hand of these persons and also took them into custody. However, since they were released on bail and no substantive evidence qua their involvement came to light and investigation did not lead to any further clue, eventually untraced report came to be filed on 27.7.2011, in connection with F.I.R. No. 267/2009, dated 29.10.2009 (Ext. PW-17/A) registered at Police Station Solan Sadar, Distt. Solan, H.P.
3. After a period of approximately two years, on 1.12.2011, SI-Ved Parkash (not examined) deputed at Anti Auto Theft Staff North West District, Delhi received a secret ::: Downloaded on - 15/04/2017 21:22:07 :::HCHP 6 information that one lady alongwith four - five persons was seeking opinion from a lawyer at the Court Complex, Rohini, .
in connection with an offence/murder which took place at Solan. With the receipt of such information, immediately a police party came to be constituted and same day, accused were nabbed. During interrogation, they confessed to have of committed murder of deceased Rattni and Desh Raj. Such information came to be passed on to the police officials of rt Police Station Solan and on receipt thereof, Inspt. Chaman Lal (PW-27) after reaching Delhi took custody of the accused and by obtaining transit remand, brought them to Solan, where, in custody, they made confessional/disclosure statements in the presence of independent witnesses. Also pursuant thereto, accused led the police identifying various places of crime.
4. During the course of such investigation, police discovered that on 28th October, 2009, in pursuance of a criminal conspiracy, all the accused travelled in a taxi from Delhi to Solan where they spent the night in a hotel and in the morning of 29th October, 2009, at about 11.00 - 11.30 a.m., visited the Kinner Centre and after murdering the ::: Downloaded on - 15/04/2017 21:22:07 :::HCHP 7 deceased, committed dacoity by stealing their gold ornaments. Thereafter in a huff, all of them left the spot .
only to return to Delhi, where accused Wakar Chaudhary sold the gold ornaments to a jeweler. Also while committing the crime, accused Wakar Chaudhary unauthorizedly used a licenced revolver owned by him. With the completion of of investigation, which prima facie, revealed complicity of the accused in the alleged crime, challan came to be presented rt against them in the Court for trial.
5. Accused were charged for having committed offences punishable under the provisions of Sections 302 and 396, both read with Section 120-B of the Indian Penal Code. Additionally accused Wakar Chaudhary was charged for having committed an offence punishable under the provisions of Section 25-54-59 of the Arms Act. All the accused pleaded not guilty and claimed trial.
6. In order to establish the aforesaid charges, prosecution examined as many as 29 witnesses and statements of the accused under Section 313 of the Code of Criminal Procedure were recorded, in which they took plea ::: Downloaded on - 15/04/2017 21:22:07 :::HCHP 8 of innocence and false implication. No evidence in defence came to be led by them.
.
7. Appreciating the material placed on record by the prosecution, trial Court, as observed earlier, convicted all the accused in relation to all the charged offences and sentenced them as aforesaid. Hence the present appeals.
of
8. In convicting the accused what primarily weighed with the trial Court was: (i) Confessional statements made rt by the accused before the police officials, admitting their guilt of having murdered the deceased; (ii) Their disclosure statements which, (a) led to the identification of the spot of crime; (b) the hotel where they spent the night intervening 28th/29th October, 2009; (c) Place and the person to whom, after committing dacoity, gold ornaments of the deceased came to be sold; (iii) The version of Nizam (PW-10), driver of the taxi, in which, the accused travelled from Delhi to Solan and back; (iv) Acquaintanceship between accused Asha and deceased Rattni.
9. We have heard learned counsel for the parties and also minutely examined the testimonies of the witnesses and other documentary evidence so placed on ::: Downloaded on - 15/04/2017 21:22:07 :::HCHP 9 record by the prosecution. Having done so, we are of the considered view that the reasoning adopted by the trial .
Court is perverse and not based on correct and complete appreciation of testimonies of the witnesses. Judgment in question is not based on correct and complete appreciation of evidence and material placed on record, causing serious of prejudice to the accused, resulting into miscarriage of justice. rt
10. Contradictions in the testimony of the witnesses to our mind, are major, grave and material, rendering their version to be absolutely uninspiring in confidence, impeaching their credibility and reliability.
11. In Shivaji Sahabrao Bobade and another Versus State of Maharashtra, (1973) 2 SCC 793, the apex Court, has held that:
".......Lord Russel delivering the judgment of the Board pointed out that there was "no indication in the Code of any limitation or restriction on the High Court in the exercise of its powers as an appellate Tribunal", that no distinction was drawn "between an appeal from an order of acquittal and an appeal from a conviction", and that "no limitation should be placed upon that power ::: Downloaded on - 15/04/2017 21:22:07 :::HCHP 10 unless it be found expressly stated in the Code". .... ....
.
(Emphasis supplied) [See: Aher Raja Khima Versus State of Surashtra, AIR 1956 SC 217].
12. The apex Court in Lal Mandi v. State of W.B., (1995) 3 SCC 603, has held that in an appeal against of conviction, the appellate Court is duty bound to appreciate the evidence on record and if two views are possible on the rt appraisal of evidence, benefit of reasonable doubt has to be given to the accused.
13. Also it is settled position of law that graver the punishment the more stringent the proof and the obligation upon the prosecution to prove the same and establish the charged offences.
14. Undisputedly it is not a case of direct evidence, but that of circumstantial evidence. We shall first deal with the law on the point.
15. Law with regard to circumstantial evidence is now well settled. It is a settled proposition of law that when there is no direct evidence of crime, the guilt of the accused can be proved by circumstantial evidence, but then the ::: Downloaded on - 15/04/2017 21:22:07 :::HCHP 11 circumstances from which the conclusion of guilt is to be drawn, should be fully proved and such circumstances must .
be conclusive in nature, to fully connect the accused with the crime. All the links in the chain of circumstances must be established beyond reasonable doubt, and the proved circumstances should be consistent, only with the of hypothesis of guilt of the accused, being totally inconsistent with his innocence. While appreciating the circumstantial rt evidence, the Court must adopt a very cautious approach and great caution must be taken to evaluate the circumstantial evidence. [Pudhu Raja and another Versus State Represented by Inspector of Police, (2012) 11 SCC 196; Madhu Versus State of Kerala, (2012) 2 SCC 399; Dilip Singh Moti Singh versus State of Gujarat, (2010) 15 SCC 622, Mulakh Raj and others Versus Satish Kumar and others, (1992) 3 SCC 43; and Sharad Birdhichand Sarda Versus State of Maharashtra, (1984) 4 SCC 116.].
16. Also, apex Court in Padala Veera Reddy v. State of Andhra Pradesh and others, 1989 Supp (2) SCC 706, held that when a case rests upon circumstantial evidence, following tests must be satisfied:
::: Downloaded on - 15/04/2017 21:22:07 :::HCHP 12"(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
.
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and of (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence rt should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."
(Also see: Ramreddy Rajesh Khanna Reddy v. State of A.P., (2006) 10 SCC 172; Balwinder Singh v. State of Punjab, 1995 Supp (4) SCC 259; and Harishchandra Ladaku Thange v.
State of Maharashtra, (2007) 11 SCC 436).
17. Each case has to be considered on its own merit.
Court cannot presume suspicion to be a legal proof. In the absence of an important link in the chain, or the chain of circumstances getting snapped, guilt of the accused cannot be assumed, based on mere conjectures.
18. The apex Court in State of U.P. v. Ashok Kumar Srivastava, (1992) 2 SCC 286, while cautioning the Courts in evaluating circumstantial evidence, held that if the evidence adduced by the prosecution is reasonable, capable ::: Downloaded on - 15/04/2017 21:22:07 :::HCHP 13 of two inferences, the one in favour of the accused must be accepted. This of course must precede the factum of .
prosecution having proved its case, leading to the guilt of the accused.
19. In the instant case, perusal of the impugned judgment reveals that trial Court, as is so required under of law (Mukhtiar Singh and another v. State of Punjab, AIR 1995 SC 686), rt has specifically not culled out the circumstances or framed the points for consideration against the accused. Before this Court, prosecution has pressed the following circumstances emerging from record:-
(1). Recovery of dead body of Rattni and Desh Raj;
(2) Registration of F.I.R. No. 267 of 2009 (Ext. PW-
17/A), dated 29.10.2009 at Police Station Sadar Solan, in connection with the crime; (3) Non involvement of Priya Mahant (PW-4) or Manish in the crime;
(4) Receipt of secret information and arrest of the accused at Delhi where they made confessional statements;
(5) Custody of the accused having been handed over to police officials of Police Station Solan; (6) Disclosure statements made by the accused at Solan;
::: Downloaded on - 15/04/2017 21:22:07 :::HCHP 14(7) Identification of various spots of crime by accused Iqbal, Dalip and Wakar Chaudhary;
.
(8) Acquaintanceship of deceased with accused Asha;
(9) Accused having travelled from Delhi to Solan and spent the night in a hotel and the following morning, after committing the crime, of returned to Delhi. Their presence having been noticed on the spot by an independent person i.e. Prerna;
rt (10) Recovery of weapon of offence (Ext.P-3); and i.e. knife (11) Recovery of pistol from the custody of accused Wakar Chaudhary.
20. For establishing the same we were minutely taken through the testimonies of all the witnesses and other evidence on record.
21. But before we deal with the testimonies of the prosecution witnesses, it would be worthwhile to discuss certain undisputed facts - yes undisputed - which have emerged on record through their testimonies:
(i) Information of death of the deceased came to be furnished to the police by Priya Mahant (PW-
4), Shilpa, Manish and Rajesh (PW-5);::: Downloaded on - 15/04/2017 21:22:07 :::HCHP 15
(ii) Significantly neither Shilpa nor Manish (himself a suspect) stand examined in Court;
.
(iii) Inspt. Raj Kumar (PW-26) who initially investigated the case did not rule out the possibility of involvement of these persons in the crime. After all, both of them had left the house together, in the company of Priya of Mahant and Rajesh;
(iv) Priya Mahant and Manish were themselves suspects and were arrested and confined to rt judicial custody for 54 days;
(v) Eventually untraced report dated 29.7.2011 came to be filed by the police in the Court;
(vi) Asha was known to deceased Rattni from before, which information came to be furnished by Rajesh (PW-5) to the police in the year 2009. Police did not suspect her role in the crime. Nor did anyone point out any finger of suspicion against her;
(vii) None of the other accused had any association with the deceased or their activities;
(viii) Accused were not known to each other from before. They were neither friends, acquaintances or business partners;
(ix) Admission of some of the prosecution witnesses about the ailing condition and ill health of deceased Rattni, who more or less, ::: Downloaded on - 15/04/2017 21:22:07 :::HCHP 16 was confined to the four walls of her residence (Kinner Centre);
.
(x) Police handed over key of the room of deceased Rattni to Sweety, ordinarily a resident of Kalka (Haryana), who had rivalry with the deceased over the area of operation.
Why it was so done, remains unexplained on of record. Her involvement in the crime has not been ruled out;
(xi) Existence of a dispute with regard to rt succession amongst between Priya Mahant, Asha @ Sarfutti and Sweety;
(xii) Neither did police associate nor did prosecution examine any independent witnesses of repute in Court. They only associated Shami Kaushal (PW-25) who himself was a convict in relation to an NDPS crime;
(xiii) Records so taken on record by Inspt. Raj Kumar (PW-26), of telephonic conversation inter se Priya, Sweety and deceased Rattni are missing from the record;
(xiv) Also Prerna, an independent person who allegedly last saw the accused near the place of occurrence of crime, remains unexamined in Court;
(xv) Rough sketch prepared by Inspt. Raj Kumar (PW-26) for identification of the accused through Prerna is also missing from the record;
::: Downloaded on - 15/04/2017 21:22:07 :::HCHP 17(xvi) Proceedings of test identification parade so got conducted from Prerna, for identifying accused .
Asha is not on record;
(xvii) Finger prints of the accused taken by Inspt.
Raj Kumar (PW-26) are not part of the record;
(xviii) Police Official SI-Ved Parkash who received the secret information from an "informer" (not of examined) of the accused seeking legal opinion at the Courts Complex, Rohini (Delhi) was also not examined in court;
rt (xix) Though allegedly arms weapon i.e. revolver was recovered from Wakar Chaudhary at Delhi, but however conviction is that of an unlicensed pistol; and (xx) What prompted the accused to seek legal opinion at Delhi after a gap of two years, in the teeth of investigation having closed and untraced report filed in the Court remains unestablished on record.
22. We have highlighted these points only to demonstrate the missing links in the chain of events, rendering the prosecution case of involvement of only the accused and none else in the crime to be doubtful.
23. Repetitive that we may sound but we are constrained to observe that Prerna was the most material witness in the instant case. She was the sole eye witness.
::: Downloaded on - 15/04/2017 21:22:07 :::HCHP 18After all, police officials want us to believe that she had seen the movement of the accused at the spot of crime.
.
And this was at the time of commission of crime. No reason is forthcoming for her non examination in Court. Inspt. Raj Kumar (PW-26) records her presence and admits of having shown rough sketch of the alleged culprits (undisclosed) to of her, which also never came to be placed on record. In paragraph- 48 of the judgment, trial Court erred in rt observing that non-identification of the accused by Prerna would not render the prosecution case to be fatal.
Identification of the accused through her was absolutely necessary, more so in the absence of proof of any conspiracy, having been established on record.
24. Neither the lawyer from whom accused sought legal opinion, nor SI Ved Prakash, AATS Delhi, stands examined in Court. Save and except the statement of taxi driver Nizam (PW-10) and Manager of the hotel Ashok Kumar (PW-6), prosecution has failed to establish as to how and in what manner the accused were otherwise known to each other and with what motive they hatched a conspiracy ::: Downloaded on - 15/04/2017 21:22:07 :::HCHP 19 of murdering the deceased or together committing an act of dacoity.
.
25. Prosecution has not been able to establish the charge of conspiracy in any manner. In similar circumstances the apex Court in Yogendra Morarji vs. State of Gujarat, (1980) 2 SCC 218 observed that "it was as much of the duty of the Court as of the parties to bring on the record all material evidence necessary to reach at the rt truth. In the circumstances, the failure of the accused to examine these persons as his witnesses, therefore, did not ipso facto give rise to the inference that the defence story was absolutely false".
26. It has come on record that finger prints of the accused were taken by the police. They also did not match with the finger prints lifted by the police from the scene of crime, as is so admitted by Inspt. Chaman Lal (PW-27). Now the report of the Finger Prints Bureau is not on record. Why it was concealed remains a mystery. Adverse presumption can be drawn under the provisions of Section 114 (g) of the Indian Evidence Act, 1872. In paragraph - 48 of the judgment, trial Court does take notice of such fact, but then, ::: Downloaded on - 15/04/2017 21:22:07 :::HCHP 20 records no findings thereto. In a case of circumstantial evidence it was an important link in the chain.
.
27. The apex Court in Murarilal vs. State of M.P., AIR 1980 SC 531 has observed that "the more developed and the more perfect a science, the less the chance of an incorrect opinion and the converse if the science is less of developed and imperfect. The science of identification of finger-prints has attained near perfection and the risk of an rt incorrect opinion is practically non-existent".
28. During investigation, as is so admitted by Inspt.
Raj Kumar, call record of the mobile used by deceased was obtained, but however, it never came to be placed on record by the prosecution. Trial Court has not considered this aspect of the matter. It was absolutely necessary, for it would have highlighted involvement of Priya Mahant and Manish, who themselves were suspects, in the backdrop of admission made by Inspt. Raj Kumar that he had been informed by Sweety that prior to the occurrence of the crime, Priya Mahant had sold about 15 to 20 tolas of gold belonging to deceased Nani (Rattni).
::: Downloaded on - 15/04/2017 21:22:07 :::HCHP 2129. In Gopal Krishnaji Ketkar vs. Mohamed Haji Latif & others, AIR 1968 SC 1413, has observed that "even if the .
burden of proof does not lie on a party, the Court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts at issue.
It is not, in our opinion, a sound practice for those desiring of to rely upon a certain state of facts to withhold from the Court the best evidence which is in their possession which rt could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof".
30. The apex Court in Mussauddin Ahmed vs. State of Assam, (2009) 14 SCC 541, has held that:
"11. It is the duty of the party to lead the best evidence in its possession which could throw light on the issue in controversy and in case such material evidence is withheld, the court may draw adverse inference under Section 114 Illustration (g) of the Evidence Act, 1872 notwithstanding that the onus of proof did not lie on such party and it was not called upon to produce the said evidence [vide Gopal Krishnaji Ketkar vs. Mohamed Haji Latif & others, AIR 1968 SC 1413].
31. Under these circumstances and most certainly adverse inference can be drawn against the State.
::: Downloaded on - 15/04/2017 21:22:07 :::HCHP 22Circumstances No. (1) and (2):
32. Recovery of dead body of Rattni and Desh Raj .
vide memos (Ext. PW-26/B & Ext. PW-26/D) dated 29.10.2009, which fact came to be proved by Priya Mahant (PW-4), Rajesh (PW-5) and Inspt. Raj Kumar (PW-26) and that F.I.R. No. 267/2009, dated 29.10.2009 (Ext. PW-17/A) of Police Station Solan Sadar, Distt. Solan, H.P. came to be registered is not in dispute.
rt Circumstance No. (3):
33. Despite arrest of witness Priya Mahant (PW-4) and her acquaintance Manish (not examined) on 1.11.2009 who remained in judicial custody till 24.12.2009 (54 days), police found no evidence against these persons which led to the filing of untraced report by the police on 27.7.2011. No doubt it was for the Investigating Officer to have formed his opinion with regard to any incriminating circumstance against these persons but in the given facts and circumstances, we are of the considered view that concealment of relevant material, as discussed earlier, has created doubt about such fact. Principles laid down in Sharad Birdhichand Sarda (supra) require exclusion of ::: Downloaded on - 15/04/2017 21:22:07 :::HCHP 23 involvement of none else other than the accused in the crime about which in the factual backdrop there is .
significant and material breach.
Circumstances No. (4):
34. Prosecution wants the court to believe that on receipt of secret information by the police party headed by of SI Ved Prakash, AATS Delhi, to the effect that the accused were seeking legal opinion in connection with the crime in rt question, so proved by SI Ramesh Kumar (PW-2), accused were detained at Court Complex Rohini, Delhi on 1.12.2011 when they made confessional statements (Ext. PW-2/D1 to Ext. PW-2/D5), dated 1.12.2011 of having committed the murder, in the presence of SI Ramesh Kumar (PW-2).
35. There is no explanation on record as to why SI Ved Prakash, AATS Delhi, was not examined in Court. If the description of the informer was to be kept secret, at least the Lawyer from whom the accused were allegedly seeking opinion could have been examined in Court. It is difficult to believe that in a place like Delhi and that too within the court complex, which is busy, no independent witness could easily be made available and associated at the time the ::: Downloaded on - 15/04/2017 21:22:07 :::HCHP 24 accused were detained and made confessional statements.
Also who is this Lawyer, as stated by SI Ramesh Kumar (PW-
.
2) is a mystery. According to this witness, woman Constable Neelam was also associated when accused were nabbed on 1.12.2011. Even she remains unexamined in Court. It was necessary to lend credence to the otherwise of shaky version of the witness.
36. Further Ramesh Kumar wants the Court to rt believe that accused confessed of having committed murder, information whereof, came to be passed on to Police Station Sadar, Solan on telephone. As per sequence of events so narrated by this witness, thereafter accused were arrested under Section 41 (1A) Cr.P.C. and personal belongings, including a revolver were recovered from them.
Also during interrogation, accused made confessional statements (Ext. PW-2/D-I to Ext. PW-2/D-V), admitting having murdered the deceased. The witness is categorical that such statements came to be made when the accused were interrogated separately. Now why is it that when first time the accused made disclosure statements it was immediately not reduced into writing.
::: Downloaded on - 15/04/2017 21:22:07 :::HCHP 2537. Law on disclosure/confessional statement is now well settled. Sections 25, 26 and 27 of the Indian Evidence .
Act read as under:
"25. Confession to police officer not to be proved.
No confession made to a police officer, shall be proved as against a person accused of any offence.
of
26. Confession by accused while in custody of police not to be proved against him.
rt No confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person.
27. How much of information received from accused may be proved.
Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."
38. It be observed the principle of law as laid down in Pulukuri Kottaya and others v. Emperor, AIR (34) 1947 Privy Council 67, which is reproduced herein under, has been consistently followed by Hon'ble the Supreme Court of India.
"[10] ... ... On normal principles of construction their Lordships think that the proviso to S. 26, added ::: Downloaded on - 15/04/2017 21:22:07 :::HCHP 26 by S. 27, should not be held to nullify the substance of the section. In their Lordships' view it is fallacious to treat the "fact discovered" within the section as .
equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that "I will produce a knife concealed in the roof of my of house" does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the rt commission of the offence, the fact discovered is very relevant. But if to the statement the words be added "with which I stabbed A" these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant."
(Emphasis supplied)
39. In State of Bombay Vs. Kathi Kalu Oghad, (11 Judges Bench), 1961 (2) Cri.L.J. 856, the apex Court held that:
"11. ... ... ... "To be a witness" means imparting knowledge in respect of relevant facts, by means of oral statements or statements in writing by a person who has personal knowledge of the facts to be communicated to a court or to a person holding an enquiry or investigation. A person is said 'to be a witness' to a certain state of facts which has to be determined by a court or authority authorised to come to a decision, by testifying to what he has seen, or something he has heard which is capable of being heard and is not hit by the rule excluding hearsay, or giving his opinion, as an expert, in respect of matters in controversy. Evidence has been classified by text writers into three categories, ::: Downloaded on - 15/04/2017 21:22:07 :::HCHP 27 namely, (1) oral testimony; (2) evidence furnished by documents; and (3) material evidence. We have already indicated that we are in agreement with the .
Full Court decision is Sharma's case, 1954 SCR 1077:
(AIR 1954 SC 300) that the prohibition in clause (3) of Article 20 covers not only oral testimony given by a person accused of an offence but also his written statements which may have a bearing on the controversy with reference to the charge against him. ... ... ... ... ... ... ... It is well established that clause (3) of Article 20 is directed against self- incrimination by an accused person. Self-
of incrimination must mean conveying information based upon the personal knowledge of the person giving the information and cannot include merely the mechanical process of producing documents in court which may throw a light on any of the points in rt controversy, but which do not contain any statement of the accused based on his personal knowledge. For example, the accused person may be in possession of a document which is in his writing or which contains his signature or his thumb impression. ... ...
12. In order that a testimony by an accused person may be said to have been self-incriminatory, the compulsion of which comes within the prohibition of the constitutional provision, it must be of such a character that by itself it should have the tendency of incriminating the accused, if not also of actually doing so. In other words, it should be a statement which makes the case against the accused person at least probable, considered by itself." ... ...
[Emphasis supplied]
40. In Bodhraj alias Bodha & others vs. State of Jammu and Kashmir, (2002) 8 SCC 45, Hon'ble Supreme Court of India, held that:-
"18. Emphasis was laid as a circumstance on recovery of weapon of assault, on the basis of information given by the accused while in custody. The question is whether the evidence relating to recovery is sufficient to fasten guilt on the accused.::: Downloaded on - 15/04/2017 21:22:07 :::HCHP 28
Section 27 of the Indian Evidence Act, 1872 (in short 'the Evidence Act') is by way of proviso to Sections 25 to 26 and a statement even by way of confession .
made in police custody which distinctly relates to the fact discovered is admissible in evidence against the accused. This position was succinctly dealt with by this Court in Delhi Admn. vs. Bal Krishan, (1972) 4 SCC 659: AIR 1972 SC 3 and Mohd. Inayatullah vs. State of Maharashtra, (1976) 1 SCC 828: AIR 1976 SC
483. The words "so much of such information" as relates distinctly to the fact thereby discovered, are very important and the whole force of the section of concentrates on them. Clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. The ban as imposed by the preceding sections was presumably inspired rt by the fear of the Legislature that a person under police influence might be induced to confess by the exercise of undue pressure. If all that is required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect. The object of the provision i.e. Section 27 was to provide for the admission of evidence which but for the existence of the section could not in consequences of the preceding sections, be admitted in evidence. It would appear that under Section 27 as it stands in order to render the evidence leading to discovery of any fact admissible, the information must come from any accused in custody of the police. The requirement of police custody is productive of extremely anomalous results and may lead to the exclusion of much valuable evidence in cases where a person, who is subsequently taken into custody and becomes an accused, after committing a crime meets a police officer or voluntarily goes to him or to the police station and states the circumstances of the crime which lead to the discovery of the dead body, weapon or any other material fact, in consequence of the information thus received from him. This information which is otherwise admissible becomes inadmissible under Section 27 if the information did not come from a ::: Downloaded on - 15/04/2017 21:22:07 :::HCHP 29 person in the custody of a police officer or did come from a person not in the custody of a police officer. The statement which is admissible under Section 27 .
is the one which is the information leading to discovery. Thus, what is admissible being the information, the same has to be proved and not the opinion formed on it by the police officer. In other words, the exact information given by the accused while in custody which led to recovery of the articles has to be proved. It is, therefore, necessary for the benefit of both the accused and prosecution that information given should be recorded and proved of and if not so recorded, the exact information must be adduced through evidence. The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered rt as a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or non-inculpatory in nature but if it results in discovery of a fact, it becomes a reliable information. It is now well settled that recovery of an object is not discovery of fact envisaged in the section. Decision of Privy Council in Pulukuri Kotayya v. Emperor (AIR 1947 PC 67), is the most quoted authority for supporting the interpretation that the "fact discovered" envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect. [See: State of Maharashtra v. Danu Gopinath Shinde, (2000) 6 SCC 269]. No doubt, the information permitted to be admitted in evidence is confined to that portion of the information which "distinctly relates to the fact thereby discovered". But the information to get admissibility need not be so truncated as to make it insensible or incomprehensible. The extent of information admitted should be consistent with understandability. Mere statement that the accused led the police and the witnesses to the place where he had concealed the articles is not indicative of the information given."
(Emphasis supplied) ::: Downloaded on - 15/04/2017 21:22:07 :::HCHP 30
41. In Harivadan Babubhai Patel vs. State of Gujarat, .
(2013) 7 SCC 45, Hon'ble Supreme Court of India, held that:-
"17. In this context, we may usefully refer to A.N. Venkatesh and another v. State of Karnataka [(2005) 7 SCC 714] wherein it has been ruled that:
of "By virtue of Section 8 of the Evidence Act, the conduct of the accused person is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact. The evidence of rt the circumstance, simpliciter, that the accused pointed out to the police officer the place where the dead body of the kidnapped boy was found ... would be admissible as conduct under Section 8 irrespective of the fact whether the statement made by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 of the Evidence Act or not. ..."
In the said decision, reliance was placed on the principle laid down in Prakash Chand v. State (Delhi Admin) [(1979) 3 SCC 90: AIR 1979 SC 400]. It is worth noting that in the said case, there was material on record that the accused had taken the Investigating Officer to the spot and pointed out the place where the dead body was buried and this Court treated the same as admissible piece of evidence under Section 8 as the conduct of the accused.
18. In State of Maharashtra v. Damu [(2000) 6 SCC 269], it has been held as follows: -
"35. ... It is now well settled that recovery of an object is not discovery of a fact as envisaged in Section 27 of the Evidence Act, 1872. The decision of the Privy Council in Pulukuri Kottaya v. King Emperor [AIR 1947 PC 67] is the most quoted authority for supporting the interpretation that the "fact discovered"::: Downloaded on - 15/04/2017 21:22:07 :::HCHP 31
envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the .
information given must relate distinctly to that effect."
19. The same principle has been laid down in State of Maharashtra v. Suresh [(2000) 1 SCC 471], State of Punjab v. Gurnam Kaur and others [(2009) 11 SCC 225], Aftab Ahmad Anasari v. State of Uttaranchal [(2010) 2 SCC 583], Bhagwan Dass v. State (NCT) of Delhi [(2011) 6 SCC 396: AIR 2011 SC 1863], Manu of Sharma v. State [(2010) 6 SCC 1: AIR 2010 SC 2352] and Rumi Bora Dutta v. State of Assam [(2013) 7 SCC 417]."
The apex Court in Mahabir Mandal & others vs.
42. rt State of Bihar, (1972) 1 SCC 748 has held that:
"47. Reference may also be made to Section 26 of the Indian Evidence Act, according to which no confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved against such person. There is nothing in the present case to show that the statements which were made by Kasim and Mahadeo accused on September 18, 1963, at the police station in the presence of Baijnath resulted in the discovery of any incriminating material as may make them admissible under Section 27 of the Indian Evidence Act. As such, the aforesaid statements must be excluded from consideration."
43. Also the apex Court in Kishore Chand vs. State of Himachal Pradesh, (1991) 1 SCC 286 has observed that:
::: Downloaded on - 15/04/2017 21:22:07 :::HCHP 32"8. ... ... Section 25 of the Evidence Act provides that no confession made to a police officer .
shall be proved as against a person accused of any offence. Section 26 provides that no confession made by any person while he is under custody of the police officer, unless it be made in the immediate presence of a magistrate, shall be proved as against such person. Therefore, the confession made by an of accused person to a police officer is irrelevant by operation of Section 25 and it shall (sic not) be proved against the appellant."...
44. rt In the aforesaid backdrop, findings returned by the trial Court making the confessional statements to be admissible, as observed in paragraphs 51 to 53 of the impugned judgment, are legally unsustainable. Such statements are hit by the constitutional provisions and Section 25 of the Evidence Act and as such could not have been relied upon for establishing the fact in issue.
Circumstance No. (5):
45. This circumstance though stands proved on record through the testimonies of SI Ramesh Kumar (PW-2) and Inspt. Chaman Lal (PW-27), but of no consequence as we find the link in the chain to have been snapped at the first instance itself.
::: Downloaded on - 15/04/2017 21:22:07 :::HCHP 33Circumstance No. (6):
46. Prosecution wants the Court to believe that at .
Solan, accused Iqbal Khan having made disclosure statement (Ext.PW-25/A), dated 5.12.2011 in the presence of Shami Kaushal (PW-25) and Kailash Thakur (not examined); accused Dalip having made disclosure of statement (Ext. PW-20/A), dated 6.12.2011 in the presence of HC Om Parkash (PW-20) and HC Sohan Lal rt (not examined); and accused Wakar Chaudhary having made disclosure statement (Ext. PW-20/B), dated 8.12.2011 also in the presence of HC Om Parkash (PW-20) and HC Sohan Lal (not examined).
47. We express our doubt with regard to the voluntary nature of such disclosure statements. In Court, prosecution has not examined witness Kailash Thakur and the credibility of another witness Shami Kaushal (PW-25) is suspect. In fact, he is a convict and in touch with the police.
One cannot forget the fact that such statement came to be recorded five days after the arrests, making the delay significant and unexplainable, more so in view of the fact ::: Downloaded on - 15/04/2017 21:22:07 :::HCHP 34 that police did not suspect involvement of accused Asha in the crime.
.
Circumstance No. (7):
48. Prosecution wants the court to believe that pursuant to the disclosure statement (Ext. PW-6/B), accused Iqbal got identified the hotel where they had spent the night of prior to the commission of the crime which led the police to recover the record of the hotel, so taken into possession rt vide memo (Ext.PW-6/C) dated 5.12.2011, proved by Ashok Kumar (PW-6), Shami Kaushal (PW-25) and Inspt. Chaman Lal (PW-27).
49. Identification of the spot of crime by accused Dalip vide memo (Ext. PW-7/A) dated 6.12.2011, proved by Neha (PW-7) and Sunita (not examined).
50. Identification of the Jeweler at Delhi vide memo (Ext. PW-21/A) dated 9.12.2011 in the presence of Mukesh Kumar (not examined), ASI Rakesh Guleria (PW-21) and Inspt. Chaman Lal (PW-27); and recovery of receipt of gold ornaments sold by accused Wakar Chaudhary to Vijay Verma (PW-8) vide memos (Ext. PW-8/A and Ext. PW-8/B) dated 9.12.2011 as also statement of complainant (Ext. PW-
::: Downloaded on - 15/04/2017 21:22:08 :::HCHP 354/A) proved by these persons as also Inspt. Raj Kumar (PW-
26).
.
51. Pursuant to the disclosure statement (Ext. PW-
25/A), Shami Kaushal (PW-25) and Inspt. Chaman Lal (PW-
27) went to the hotel as shown to them by accused Iqbal. As such the hotel was got identified. But the fact of the matter of is that police took all the accused persons to the hotel. Why so? remains unexplained. Perhaps they wanted them to be rt identified from the establishment. However on this count, we may only observe that even Ashok Kumar, Manager of the hotel (PW-6), the only witness examined in the Court admits that he could not identify each and every customer who had stayed in his hotel consisting of fifteen rooms.
Significantly it is not the case of this witness that he knew the accused from before. In Court, he does state that even though police had brought all the accused, he could only identify accused Wakar Chaudhary, who allegedly filled up the register. He admits that no other accused signed any of the documents of the hotel. His version of having identified Wakar Chaudhary to be the person who signed the register cannot be said to be inspiring in confidence, considering the ::: Downloaded on - 15/04/2017 21:22:08 :::HCHP 36 time gap of more than two years and his admission of not being in a position of identifying other customers having .
stayed in his hotel. It is not the case of this witness that accused Wakar Chaudhary was otherwise his frequent/regular customer. Significantly police did not get the accused identified from this witness, by conducting the of test identification parade. Also this witness was aware of the fact that the deceased had died. He did not inform the rt police of the accused having stayed in his hotel, the night prior to the incident.
52. Also authenticity of register (Ext.P-7) itself is in doubt, for the first entry recorded therein is of 20.8.2009 and is also not signed by any government official, who otherwise comes for inspection of the hotel in relation to the assessment of luxury tax.
53. Neha (PW-7) was associated by the police for identification of the spot of crime by accused Dalip. But then we do not find her testimony to be inspiring in confidence. Definitely she is not an independent person, for the police handed over the keys of the residence of deceased Rattni to her Guru i.e. Sweety. Also this person is ::: Downloaded on - 15/04/2017 21:22:08 :::HCHP 37 resident of Kalka (Haryana) and ordinarily not residing within the state of Himachal Pradesh. Now why would police .
associate a person from outside the State as a witness is a mystery. In any case, identification of the spot cannot be said to be discovery of fact, for the police was already aware of the same.
of
54. At this juncture we may deal with the opinion (Ext. PW-29/A) of expert Dr. Jagjit Singh (PW-29) proving the rt exemplar handwriting of accused Wakar Chaudhary to have matched with the handwriting on register (Ext. P-7).
This is only corroborative piece of evidence, which in the given facts and circumstances cannot be considered to be substantive in nature. One cannot forget the time gap between the date of entry in the register and the alleged identification of the said accused by witness Ashok Kumar.
Assuming hypothetically this accused had actually stayed in the hotel, then save and except the ocular version of Nizam (PW-10), whom we otherwise do not find to be stating the truth, as we shall discuss herein later, there is nothing on record to establish that the remaining accused also stayed in the hotel.
::: Downloaded on - 15/04/2017 21:22:08 :::HCHP 3855. Prosecution wants the Court to believe that after robbing the deceased of their gold ornaments, accused .
Wakar Chaudhary sold them to a Jeweler by the name of Vijay Verma (PW-8) at Delhi. Disclosure statement (Ex.PW-
20/B) and identification of the place of the jeweler (Ex.PW-
21/A), recovery of the estimate bill book (Ex.P-8) and of receipt (Ex.PW-8/B) are pressed by the prosecution.
56. We may only observe that the genesis of rt prosecution story of theft of ornaments and other valuables from the body of deceased or from their house is extremely doubtful bordering falsehood.
57. In her statement (Ex. PW-4/A), Priya Mahant (PW-
4) got recorded that ornaments worn by the deceased on their necks and hands, as also currency were stolen.
Significantly, there is no allegation of breaking open of almirah or locker. But Inspt. Raj Kumar (PW-26), in the inquest reports, did not record such fact. But while appearing in Court, Priya Mahant improved her version by stating that almirah placed inside the room was opened and locker thereof broken. Also some articles were found to have been taken out of the bed box kept inside the room.
::: Downloaded on - 15/04/2017 21:22:08 :::HCHP 39She is categorical that jewellery, i.e. rings, gold chain, bracelet, tops, bangles, all of gold, worn by both the .
deceased, were found missing. The version is absolutely uninspiring in confidence, for (a) it is an improvement, (b) not corroborated by Inspt. Raj Kumar (PW-26), and most importantly (c) it stands belied by Dr. Anuj Kumar Gupta of (PW-23), who issued the postmortem reports (Ext.PW-23/C & Ext. PW-23/D) recording that both deceased Rattni and rt Desh Raj were having gold ornaments on their fingers, wrists and ears.
58. As such, prosecution case of motive stands totally demolished, rendering the genesis of prosecution story to be unbelievable and untrue, if not false.
59. That apart, disclosure statement (Ex.PW-20/B) made by accused Wakar Chaudhary is uninspiring in confidence. No independent witness was associated by the police. Further, it is not the case of prosecution that accused was known to jeweller Vijay Verma (PW-8). He was not having regular business dealings with the said accused, who otherwise, on the asking of the police, had identified the accused during the Test Identification Parade which in ::: Downloaded on - 15/04/2017 21:22:08 :::HCHP 40 the instant case, was absolutely necessary. The Apex Court in Harnath Singh v. The State of Madhya Pradesh, AIR 1970 .
SC 1619, has observed that:-
"9. ... ... .. During the investigation of a crime the Police has to hold identification parades for the purpose of enabling witnesses to identify the of properties which are the subject matter of the offence or to identify the persons who are concerned therein. They have thus a twofold rt object: first, to satisfy the authorities that a certain person not previously investigating known to the witnesses was involved in the commission of the crime or a particular property was the subject of the crime. It is also designed to furnish evidence to corroborate the testimony which the witness concerned tenders before the Court."
60. Further Vijay Verma wants the Court to believe that sometime in the year 2009, accused came to him and got prepared estimate of gold jewellery of approximately 82.4 grams. Estimate thereof (Ex.P-8) was prepared and eventually gold was sold to him for a sum of `1,20,000/-, for which receipt (Ex.PW-8/B) came to be issued to accused Wakar Chaudhary.
::: Downloaded on - 15/04/2017 21:22:08 :::HCHP 4161. We are pained to observe that the trial Court, in Paragraphs 44-47 of the impugned judgment, failed to fully .
appreciate such version, which we do not find to be inspiring in confidence. As already observed, he was not known to accused Wakar Chaudhary from before. He admits that he could not recognize his customers, who had of purchased or sold gold in the year 2009. Now why would a jeweller issue an estimate and keep record thereof, remains rt unexplained. It is not the usual practice adopted by him or the requirement of law. Crucially, payment was made not by cheque, but in cash. Why would a person make payment of `1,20,000/- in cash, in violation of law, remains unexplained. Also, what happened to the said jewellery remains unexplained. Gold ornaments have not been recovered. Description of gold gewellery on Ex.PW-8/B does not tally with the statement (Ex.PW-4/A) or postmortem reports (Ext.PW-23/C & Ext. PW-23/D). In fact there is absolute vagueness about the number or description of the articles stolen by the accused. It is also not the case of this witness or that of the prosecution that the ornaments were got melted. There is also no recovery of cash. Also none ::: Downloaded on - 15/04/2017 21:22:08 :::HCHP 42 came forward to depose that it was distributed amongst the accused. We otherwise express doubt with regard to the .
genuineness or authenticity of the receipt (Ex. PW-8/B), for as is so admitted by the witness, save and except, on the documents recovered by police, there are no signatures of any other customer on any one of the records/books of maintained by him. Also as to whether, purchase of gold was accounted for in the books of accounts or not; or rt whether any tax return with respect thereto, came to be filed or not remains unproven on record. But what totally knocks down the prosecution case is his admission that even he did not ask for identity of accused Wakar Chaudhary at the time of purchase of jewellery. Hence this circumstance cannot be said to have been proven on record.
Circumstance No.8
62. Prosecution wants the court to believe the accused Asha knew deceased Rattni from before, which fact is evident from album (Ext. P-9) so recovered by the police vide memo (Ext. PW-9/A), dated 9.12.2011 in the presence ::: Downloaded on - 15/04/2017 21:22:08 :::HCHP 43 of Umesh Chauhan (PW-9) and Mukesh Kumar (not examined) as also Inspt. Chaman Lal (PW-27).
.
63. This circumstance is not incriminating in any manner. Asha was known to the deceased was a fact, which was already made known to the police, way back in the year 2009, as is so admitted by Inspt. Raj Kumar.
of Circumstances No. 9 rt
64. Prosecution case is of the accused having travelled all the way from Delhi to Solan in a taxi owned by Nizam (PW-10), so proven by this witness in terms of his statement (Ext. PW-22/B), recorded by JMIC Vikrant Kaundal (PW-22) under the provisions of Section 164 Cr.P.C.;
recovery of tax receipt (Ext.PW-11/A) dated 28.10.2009, maintained at the tax barrier Parwanoo vide memo (Ext.PW-
11/B) dated 19.12.2011, proved on record by Sachinder Chaudhary (PW-11) and Inspt. Chaman Lal (PW-27);
recovery of register of hotel (Ext.P-7) singed by accused Wakar Chaudhary which fact stands proven on record by Dr. Jagjit Singh (PW-29), who opined the specimen handwriting of Wakar Chaudhary taken in the presence of JMIC Vikrant ::: Downloaded on - 15/04/2017 21:22:08 :::HCHP 44 Kaundal (PW-22) vide memo (Ext. PW-22/E) dated 14.12.2011 to have matched with the entries in the register .
recovered vide memo (Ext. PW6/C) dated 5.12.2011.
65. Most crucial circumstance, pressed by the prosecution, purportedly has emerged through the testimony of Nizam (PW-10). It is a matter of record that of statement of this witness, under the provisions of Section 164 of the Code of Criminal Procedure (Ex.PW-22/B), was rt recorded by Shri Vikrant Kaundal (PW-22), a Magistrate, in terms whereof, he deposed that at Delhi accused Dalip hired his taxi, in which all the accused travelled up to Solan and together spent the night in a hotel. For a short duration, even he slept with them. Following day, on their way to Delhi, accused got stopped the vehicle at a particular place and left together. Accused Bablu returned after five minutes whereas remaining accused returned after about half an hour. At that time, accused Iqbal was carrying a black coloured bag in his hand. Thereafter, under instructions from accused Dalip, he straightway drove to Delhi, where accused Iqbal, Bablu and Asha got down at ::: Downloaded on - 15/04/2017 21:22:08 :::HCHP 45 Khajuri red light and accused Wakar Chaudhary and Dalip got dropped at their respective residences.
.
66. Even though we find the Magistrate to have proven on record statement (Ex.PW-22/B), but then in Court this witness (PW-10) has resiled from the same. He (PW-10) has explained that only under threats extended by the of police, he made such statement in Court. He is categorical that police had also inquired about the whereabouts of his rt driver and also threatened to put him behind bars. In his unrebutted testimony, he has stated that for two days, on the asking of police, he kept on rehearsing the said statement (Ex.PW-22/B), so made before the Magistrate.
67. Also what one cannot ignore is admission made by Vikrant Kaundal that he had not afforded sufficient time to the witness for pondering over the matter and that he had not questioned about his educational qualifications.
Significantly Nizam himself had not made any separate application, conveying his willingness to make such a statement.
68. The apex Court in Ram Kishan Singh v. Harmit Kaur and another, AIR 1972 SC 468 has observed that "a ::: Downloaded on - 15/04/2017 21:22:08 :::HCHP 46 statement under section 164 of the Code of Criminal Procedure is not substantive evidence. It can be used to .
corroborate the statement of a witness. It can be used to contradict a witness".
69. In Ram Lakhan Sheo Charan and others v. State of UP, 1991 Cr.L.J 2790, the Court observed as under:
of "12. The trial was held when the new Code of Criminal Procedure had come into force. The wordings of S. 164 in the new and old Code of Criminal Procedure with little changes are the same.
rt As early as in Manik Gazi v. Emperor, AIR 1942 Cal 36: (1942) 43 Cri L.J. 277 a Division Bench of the Calcutta High Court had held that the statements u/s. 164 of the Code can be used only to corroborate or contradict the statements made u/ss. 145 and 157 of the Indian Evidence Act. In Brij Bhushan Singh v. Emperor, AIR 1946 PC 38 and in Mamand v. Emperor, AIR 1946 PC 45 the Privy Council had observed that the statement u/s. 164 of the Code cannot be used as a substantive evidence and which can only be used to contradict and corroborate the statement of a witness given in the Court. Similar observations, as made in the two cases below, were made by the Privy Council, in Bhuboni Sahu v. King, AIR 1949 PC 257: (1949) 50 Cri L.J. 872 and in Bhagi v. Crown, (AIR (37) 1950 HP 35 ). It was also held by a single Bench of the Himachal Pradesh Judicial Commissioners court that statement u/s. 164 of Code cannot be used as a substantive piece of evidence. In State v. Hotey Khan, 1960 ALJ 642. A division Bench of this Court had also observed that statements u/s. 164 of the Code cannot be used as a substantive evidence.
(13) The above catena of cases go to show that where the witnesses do not support the prosecution story in the Court, then their statements u/s. 164 of the Code cannot be used as substantive piece of evidence."...
::: Downloaded on - 15/04/2017 21:22:08 :::HCHP 4770. Crucially there is a missing link, leading to the .
recording of statement (Ex.PW-22/B). No independent witness has made reference of the vehicle or the accused having travelled in the same from Delhi to Solan.
71. Prosecution wants the Court to believe that while of entering Himachal Pradesh, at the Barrier at Parwanoo, toll tax was paid by the driver, which entry was made and rt receipt issued. But then, how would such fact link the accused to the crime. Entry at the barrier does not record the name of the persons travelling in the vehicle or for that matter driver of the vehicle.
72. Significantly, vehicle of Nizam was allegedly hired by accused Dalip who had no past acquaintance or business relationship. It is not the prosecution case that accused Dalip was known to Nizam from before. Nizam is an owner of taxi. That'a about all. Without identification, how is it that this witness was able to identify the accused in Court and that too after a gap of two years. Significantly, he does not disclose the place of residence of accused Dalip or Wakar Chaudhary and most crucially, about which there is no iota of evidence, how is it that police party i.e. Inspt.
::: Downloaded on - 15/04/2017 21:22:08 :::HCHP 48Raj Kumar or Inspector Chaman Lal actually reach up to him, for in the confessional statements (Ex.PW-2/D-I to 2/D-
.
V), what came to be disclosed was not the type or number of the vehicle and the name/identity of the driver/owner, but the fact that accused had travelled in a "private car", which unrebuttedly is not Tata Sumo, a vehicle registered of as a taxi. Also, no log book of the vehicle stands proven on record. rt
73. Police was already aware of the spot of crime or the place where the accused had spent the night. As such, Memo (Ex. PW-10/D), more so, in the absence of examination of independent witnesses is of no significance.
As such even such circumstance cannot be said to have been proven on record.
Circumstance No.10
74. Weapon of offence, i.e. knife (Ex.P-3) was recovered by the police from the spot. But well there is nothing on record to link the accused to the same.
Circumstance No.11
75. SI Ramesh Kumar (PW-2) states that in Delhi, when the accused were arrested, licenced revolver came to ::: Downloaded on - 15/04/2017 21:22:08 :::HCHP 49 be recovered from the possession of accused Wakar Chaudhary. Trial Court, in Para-53 of the impugned .
judgment has held the same to have been used by Wakar Chaudhary for threatening the deceased at the time of committing decoity. Now significantly, in view of admission made by SI Ramesh Kumar, accused was also carrying of licence to possess and carry this firearm. For establishing the fact that the firearm came to be carried beyond the rt territorial limits, i.e. within the State of Himachal Pradesh, again prosecution seeks reliance upon the testimony of Nizam, who simply states that he had seen a pistol hung with the belt by accused Wakar Chaudhary. Now, this witness categorically does not identify the weapon of offence to be the one which he had seen. Also, there is no whisper that such firearm ever came to be used in the commission of crime.
76. Hence, from the material placed on record, prosecution has failed to establish that the accused are guilty of having committed the offence(s) they stand charged for.
The circumstances cannot be said to have been proven by unbroken chain of unimpeachable testimony of the prosecution witnesses. The guilt of the accused does not ::: Downloaded on - 15/04/2017 21:22:08 :::HCHP 50 stand proved beyond reasonable doubt to the hilt. The chain of events do not stand conclusively established, leading only .
to one conclusion, i.e. guilt of the accused. Circumstances when cumulatively considered do not fully establish completion of chain of events, indicating to the guilt of the accused and to no other hypothesis, other than the same.
of
77. Thus, findings returned by the trial Court, convicting the accused, cannot be said to be based on rt correct and complete appreciation of testimonies of prosecution witnesses. Such findings cannot be said to be on the basis of any clear, cogent, convincing, legal and material piece of evidence, leading to an irresistible conclusion of guilt of the accused. Incorrect and incomplete appreciation thereof, has resulted into grave miscarriage of justice, inasmuch as accused stands wrongly convicted for the charged offence. Also perversity as discussed by Hon'ble the Apex Court in Prem Kaur v. State of Punjab and others, (2013) 14 SCC 653, is writ large.
78. Hence, for all the aforesaid reasons, appeals are allowed and the judgment of conviction and sentence dated 20.11.2014/26.11.2014, passed by the learned Addl.
::: Downloaded on - 15/04/2017 21:22:08 :::HCHP 51Sessions Judge-I, Solan, Distt. Solan, H.P., in Sessions Trial No. 24-S/7 of 2012, titled as State of Himachal Pradesh vs. .
Wakar Chaudhary & others, is set aside and the accused are acquitted of the charged offences. They be released from jail, if not required in any other case. Amount of fine, if deposited by the accused, be refunded to them. Release warrants be of prepared accordingly. Registrar (Judicial) to ensure prompt compliance.
79. rt This Court places on record, with appreciation, the efforts put in by M/s. Anoop Chitkara, O.P. Chauhan and Shikha Chauhan learned counsel as also M/s Vinay Thakur, Vir Bahadur Verma and Archana Dutt, learned legal aid counsel, in assisting the Court.
Appeals stand disposed of, so also pending application(s), if any.
(Sanjay Karol), Judge.
(Ajay Mohan Goel), Judge.
October 6 , 2016 (PK) ::: Downloaded on - 15/04/2017 21:22:08 :::HCHP